Gender Identity & California’s DFEH’s Transgender Protections

Business owners in California must understand the entire spectrum of important federal and state employment laws, statutes and best practices. From the Norris-LaGuardia Act of 1932 to the Fair Labor Standards Act of 1938, Title VII of the Civil Rights Act of 1964 to the 2015 California Fair Pay Act, legislators and concerned citizens have worked tirelessly to protect the rights of workers across the great state of California – and beyond. Recently, California’s Department of Fair Employment and Housing (DFEH) took the fight one step further and introduced a series of protections (Senate Bill 396) aimed at those who identify as transgender. New regulations went into effect on July 1, 2017 and represent a huge step forward in the protection of transgender individuals.

Let’s look at the key points of this important new legislation.

Expanding the Definition of Gender

Instead of simply requiring individuals to indicate if they are male or female, the new DFEH protections create different definitions for gender expression and gender identity. Gender expression refers to how an individual behaves or appears, regardless of their sex assigned at birth. Gender identity, on the other hand, is an individual’s personal understanding or perception of their own gender, regardless of their sex at birth.

Redefining “Transitioning”

The DFEH transgender protections enacted last July also more closely define what it means to be “transitioning,” in respect to a transgender individual. The California DFEH regulations define transitioning as “the process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.”

Elimination of Documentation

It is unacceptable under the DFEH protections for an employer to ask an employee to divulge information related to their gender, sex, gender expression or gender identity, and employers cannot collect this information unless it is volunteered by the employee or candidate for employment. The rules are pretty straightforward – employers should not ask or require any documentation at any point related to the specific gender, sex, identity or expression of an employee.

Work Facility Access

Employers must allow employees to access and use work facilities that correspond with their gender identity or expression, not their sex at birth. This means that regardless of whether a person was born as a male or female, they should be allowed to use a restroom that corresponds to their gender identity or expression. Also, single-occupancy facilities that fall under the umbrella of an employer’s domain must be labeled with gender neutral terms like “All-gender restroom” or “Uni-sex.”

Awareness and Training

Notification of these protections should have been posted by California-based employers on or before January 1, 2018, and failure to do so represents a breach of the terms of SB-396. Employers with 50 or more employees are also required to deliver or facilitate mandatory sexual harassment prevention training that includes topics around gender expression, gender identity, and sexual orientation.

Employers must do more than simply increase their own awareness of SB-396 – they should immediately complete a full review of their policies and practices to ensure full and consistent compliance with the new regulations. Creating a comprehensive transgender policy that parallels the protections detailed in CA Senate Bill 396 is a vital activity for any business that is focused on engaging their employees, supporting them throughout their tenure, and acting in accordance with important state and federal laws.If you have experienced any form of workplace sexual discrimination, contact Feldman, Browne, Olivares law firm. We can schedule a consultation with you, to ensure that your rights are properly protected.